HARIHAR PANIGRAHI Vs. BHARAT PANIGRAHI AND ANR.

JUDGEMENT

(1.) THIS is an appeal from an appellate judgment of the Subordinate Judge, Aska upholding the decree passed by the Munsif, Aska, in a suit claiming damages for malicious prosecution. The Appellant filed a complaint in the Court of the Magistrate, Aska complaining that both the Respondents cut and damaged a fence belonging to him and that they did not desist from doing so in spite of the protest of the Appellant. The Criminal Court after trial acquitted the Respondents of the charge under Section 427, Indian Penal Code on 19 -7 -1965. Thereafter, the Respondents instituted a suit in the Court of the Munsif, Aska claiming Rs. 300./ - as carnages from the Appellant on the ground that the case instituted by the latter against them was false and malicious and that there was no reasonable and probable cause for filing the same. The learned Munsif relying on Taharat Karim and Anr. v. Malaik Abdul Khalic and Ors. : A.I.R. 1938 Pat 529 held that in view of the fact that the Defendant had come to the Criminal Court with the allegation that he had seen the Respondents cutting the fence and that as the case ended in acquittal, it must be presumed that the Defendant had no reasonable and probable cause to file the complaint and that it was malicious, and in this view, he came to the conclusion that the Plaintiffs were entitled to a decree. He, however, reduced the claim of damages to Rs. 200/ -. On appeal, the learned Subordinate Judge upheld the finding of the trial Court that malice on the part of the defend ant has been established and that the case filed by him against the Plaintiffs was false.

(2.) THIS second appeal came up at the first instance before G.K. Misra, J (as he then was) and his Lordship directed that in view of the decision reported in Ucho Singh v. Nageswar Prasad Singh and Ors. : A.I.R. 1962 Pat 478 this case should be heard by a Division Bench. This reference was made on 16 -11 -1967. Meanwhile, on 24 -6 -1969 Division Bench of this Court A. Misra and Acharya JJ. in Jogendra Garahadu v. Lingraj Patra, 35 C.L.T. 835 considered the conflict between Taharat Karim and Anr. v. Malik Abdul Khalic and Ors. : A.I.R. 1938 Pat 529 and Ucho Singh v. Nageswar Prasad Singh and Ors., A.I.R. 1962 Pat and preferred to follow Taharat Karim and Anr. v. Malik Abdul Khalic and Ors. : A.I.R. 1938 Pat 529.

(3.) IN the result, the appeal fails and is dismissed, but in the circumstances, without costs.